Texas 2009 - 81st Regular

Texas House Bill HB1885 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	81R7218 CAE-F
2	2	By: Pena H.B. No. 1885
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to a qualified privilege of a journalist not to testify.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. Chapter 22, Civil Practice and Remedies Code, is
10	10	amended by adding Subchapter C to read as follows:
11	11	SUBCHAPTER C. JOURNALIST'S QUALIFIED TESTIMONIAL PRIVILEGE
12	12	Sec. 22.021. DEFINITIONS. In this subchapter:
13	13	(1) "Communication service provider" means a person or
14	14	the parent, subsidiary, division, or affiliate of a person who
15	15	transmits information chosen by a customer by electronic means,
16	16	including:
17	17	(A) a telecommunications carrier, as defined by
18	18	Section 3, Communications Act of 1934 (47 U.S.C. Section 153);
19	19	(B) a provider of information service, as defined
20	20	by Section 3, Communications Act of 1934 (47 U.S.C. Section 153);
21	21	(C) a provider of interactive computer service,
22	22	as defined by Section 230, Communications Act of 1934 (47 U.S.C.
23	23	Section 230); and
24	24	(D) an information content provider, as defined
25	25	by Section 230, Communications Act of 1934 (47 U.S.C. Section 230).
26	26	(2) "Journalist" means a person, including a parent,
27	27	subsidiary, division, or affiliate of a person, that for a
28	28	substantial portion of the person's livelihood or for substantial
29	29	financial gain, gathers, compiles, prepares, collects,
30	30	photographs, records, writes, edits, reports, investigates,
31	31	processes, or publishes news or information that is disseminated by
32	32	a news medium or communication service provider and includes:
33	33	(A) a person who supervises or assists in
34	34	gathering, preparing, and disseminating the news or information;
35	35	or
36	36	(B) notwithstanding the foregoing, a person who
37	37	is or was a journalist, scholar, or researcher employed by an
38	38	institution of higher education at the time the person obtained or
39	39	prepared the requested information, or a person who at the time the
40	40	person obtained or prepared the requested information:
41	41	(i) is earning a significant portion of the
42	42	person's livelihood by obtaining or preparing information for
43	43	dissemination by a news medium or communication service provider;
44	44	or
45	45	(ii) was serving as an agent, assistant,
46	46	employee, or supervisor of a news medium or communication service
47	47	provider.
48	48	(3) "News medium" means a newspaper, magazine or
49	49	periodical, book publisher, news agency, wire service, radio or
50	50	television station or network, cable, satellite, or other
51	51	transmission system or carrier or channel, or a channel or
52	52	programming service for a station, network, system, or carrier, or
53	53	an audio or audiovisual production company or Internet company or
54	54	provider, or the parent, subsidiary, division, or affiliate of that
55	55	entity, that disseminates news or information to the public by any
56	56	means, including:
57	57	(A) print;
58	58	(B) television;
59	59	(C) radio;
60	60	(D) photographic;
61	61	(E) mechanical;
62	62	(F) electronic; and
63	63	(G) other means, known or unknown, that are
64	64	accessible to the public.
65	65	(4) "Official proceeding" means any type of
66	66	administrative, executive, legislative, or judicial proceeding
67	67	that may be conducted before a public servant.
68	68	(5) "Public servant" means a person elected, selected,
69	69	appointed, employed, or otherwise designated as one of the
70	70	following, even if the person has not yet qualified for office or
71	71	assumed the person's duties:
72	72	(A) an officer, employee, or agent of government;
73	73	(B) a juror or grand juror;
74	74	(C) an arbitrator, referee, or other person who
75	75	is authorized by law or private written agreement to hear or
76	76	determine a cause or controversy;
77	77	(D) an attorney or notary public when
78	78	participating in the performance of a governmental function; or
79	79	(E) a person who is performing a governmental
80	80	function under a claim of right, although the person is not legally
81	81	qualified to do so.
82	82	(6) "Violent offense" has the meaning assigned by
83	83	Article 17.032(a), Code of Criminal Procedure, and also includes
84	84	those crimes found in Sections 22.07, 43.25, 43.26(e), and 71.022,
85	85	Penal Code.
86	86	Sec. 22.022. PURPOSE. The purpose of this subchapter is to
87	87	increase the free flow of information and preserve a free and active
88	88	press and, at the same time, protect the right of the public to
89	89	effective law enforcement and the fair administration of justice.
90	90	Sec. 22.023. PRIVILEGE. (a) Except as otherwise provided
91	91	by this subchapter, a judicial, legislative, administrative, or
92	92	other body with the authority to issue a subpoena or other
93	93	compulsory process may not compel a journalist to testify regarding
94	94	or to produce or disclose in an official proceeding:
95	95	(1) any confidential or nonconfidential information,
96	96	document, or item obtained or prepared while acting as a
97	97	journalist; or
98	98	(2) the source of any information, document, or item
99	99	described by Subdivision (1).
100	100	(b) A subpoena or other compulsory process may not compel
101	101	the parent, subsidiary, division, or affiliate of a communication
102	102	service provider or news medium to disclose the information,
103	103	documents, or items or the source of any information, documents, or
104	104	items that are privileged from disclosure under Subsection (a).
105	105	Sec. 22.024. LIMITED DISCLOSURE GENERALLY. After notice
106	106	and an opportunity to be heard, a court may compel a journalist, a
107	107	journalist's employer, or a person with an independent contract
108	108	with a journalist to testify regarding or to produce or disclose any
109	109	information, document, or item or the source of any information,
110	110	document, or item obtained while acting as a journalist, other than
111	111	as described by Section 22.025, if the person seeking the
112	112	information, document, or item or the source of any information,
113	113	document, or item makes a clear and specific showing that:
114	114	(1) all reasonable efforts have been exhausted to
115	115	obtain the information from an alternative source;
116	116	(2) the subpoena is not overbroad, unreasonable, or
117	117	oppressive and, if appropriate, will be limited to the verification
118	118	of published information and the surrounding circumstances
119	119	relating to the accuracy of the published information;
120	120	(3) reasonable and timely notice was given of the
121	121	demand for the information, document, or item;
122	122	(4) in this instance, the interest of the party
123	123	subpoenaing the information, document, or item outweighs the public
124	124	interest in gathering and dissemination of news, including the
125	125	concerns of the journalist;
126	126	(5) the subpoena or compulsory process is not being
127	127	used to obtain peripheral, nonessential, or speculative
128	128	information; and
129	129	(6) the information, document, or item:
130	130	(A) is relevant and material to the proper
131	131	administration of the official proceeding for which the testimony,
132	132	production, or disclosure is sought and is essential to the
133	133	maintenance of a claim or defense of the person seeking the
134	134	testimony, production, or disclosure; or
135	135	(B) is central to the investigation or
136	136	prosecution of a criminal case regarding the establishment of guilt
137	137	or innocence and, based on something other than the assertion of the
138	138	person requesting the subpoena, reasonable grounds exist to believe
139	139	that a crime has occurred.
140	140	Sec. 22.025. LIMITED DISCLOSURE: INFORMATION OBTAINED BY
141	141	OBSERVING CRIME OR PERSON ALLEGED TO HAVE COMMITTED CERTAIN CRIMES;
142	142	PREVENTION OF CERTAIN HARMS. (a) A journalist may be compelled to
143	143	testify regarding or to produce or disclose any information,
144	144	document, or item or the source of any information, document, or
145	145	item obtained while acting as a journalist if the person seeking the
146	146	testimony, production, or disclosure makes a clear and specific
147	147	showing that the information, document, or item or the source of any
148	148	information, document, or item:
149	149	(1) was obtained as the result of an eyewitness
150	150	observation of criminal conduct by the journalist and a court
151	151	determines by clear and specific evidence that the person
152	152	requesting the testimony, production, or disclosure has exhausted
153	153	reasonable efforts to obtain the information, document, or item
154	154	from alternative sources;
155	155	(2) was obtained from any person who has confessed or
156	156	admitted to the commission of a violent offense or to a crime
157	157	against a child victim younger than 14 years of age at the time the
158	158	offense was committed and a court determines by clear and specific
159	159	evidence that the person requesting the testimony, production, or
160	160	disclosure has exhausted reasonable efforts to obtain the
161	161	information, document, or item from alternative sources;
162	162	(3) was obtained from any person for whom probable
163	163	cause exists that the person has participated in a violent offense
164	164	or in a crime against a child victim younger than 14 years of age at
165	165	the time the offense was committed and a court determines by clear
166	166	and specific evidence that the person requesting the testimony,
167	167	production, or disclosure has exhausted reasonable efforts to
168	168	obtain the information, document, or item from alternative sources;
169	169	or
170	170	(4) is reasonably necessary to stop or prevent
171	171	reasonably certain death or substantial bodily harm.
172	172	(b) If the alleged criminal conduct is the act of
173	173	communicating, receiving, or possessing the information, document,
174	174	or item and the information, document, or item does not relate to
175	175	conduct contained in Section 22.021(6), this section does not
176	176	apply, and Section 22.024 governs the act. Notwithstanding the
177	177	preceding sentence, Section 22.025(a)(1) applies to any
178	178	information, document, or item disclosed or received in violation
179	179	of a grand jury oath given to either a juror or a witness under
180	180	Article 19.34 or 20.16, Code of Criminal Procedure.
181	181	(c) An application for a subpoena of a journalist under
182	182	Article 24.03, Code of Criminal Procedure, or a subpoena of a
183	183	journalist issued by an attorney representing the state under
184	184	Article 20.10 or 20.11, Code of Criminal Procedure, must be signed
185	185	by the elected district attorney, elected criminal district
186	186	attorney, or elected county attorney, as applicable. If the
187	187	elected district attorney, elected criminal district attorney, or
188	188	elected county attorney has been disqualified or recused, the
189	189	application for the subpoena or the subpoena must be signed by the
190	190	person succeeding the elected attorney.
191	191	Sec. 22.026. NOTICE. An order to compel testimony,
192	192	production, or disclosure to which a journalist has asserted a
193	193	privilege under this subchapter may be issued only after timely
194	194	notice to the journalist, the journalist's employer, or a person
195	195	who has an independent contract with a journalist and a hearing.
196	196	The order must include clear and specific findings as to the showing
197	197	made by the person seeking the testimony, production, or disclosure
198	198	and the clear and specific evidence on which the court relied in
199	199	issuing the court's order.
200	200	Sec. 22.027. PUBLICATION OF PRIVILEGED INFORMATION.
201	201	Publication or dissemination by a news medium or communication
202	202	service provider of information, documents, or items privileged
203	203	under this subchapter is not a waiver of the journalist's
204	204	privilege.
205	205	SECTION 2. Chapter 38, Code of Criminal Procedure, is
206	206	amended by adding Article 38.11 to read as follows:
207	207	Art. 38.11. JOURNALIST'S TESTIMONIAL PRIVILEGE.
208	208	Subchapter C, Chapter 22, Civil Practice and Remedies Code, applies
209	209	to a criminal proceeding.
210	210	SECTION 3. This Act applies only to information, documents,
211	211	or items or the source of any information, document, or item
212	212	obtained or prepared for publication in a news medium or
213	213	communication service provider on or after the effective date of
214	214	this Act.
215	215	SECTION 4. This Act takes effect September 1, 2009.